Negotiation Guide

Negtiation Guide 2022

CONTENTS

TABLE OF

3

WHAT IS A NEGOTIATION?

4

TECHNIQUES

6

PREPARATION

7

WHAT IS A BATNA?

8

WHAT TO DO ON YOUR DAY?

Key Dates Junior Negotiation The junior negotiation will be run by the Geelong DLSS, and key dates will be at their discretion.

Refer to their socials and website for these dates.

Geelong DLSS Website: https://dlssgeelong.wordpress.com/ Geelong DLSS Facebook Page: https://www.facebook.com/DLSSGeelong/ Senior Negotiation Fact Scenario Released: Trimester 2 Week 1 Heats: Trimester 2 Week 2 Semis: Trimester 2 Week 3 FINALS: Trimester 2 Week 4

What is a Negotiation?

Negotiation is a word familiar to most people’s vocabulary, but what exactly is a negotiation competition? This competition involves two parties who need to make an agreement over an issue, which more often than not, will require compromise. Teams of two will represent each party, and be given the fact scenario, as well as only their client’s priorities and ideal outcomes from the negotiation. Furthermore, each team will be given facts that the other team is not, known as “confidential” or “secret” facts.

Your goal in this competition is to negotiate an outcome with the other party’s representatives that best suits your client, in simple terms, getting the other party to agree to what your party wants, to the best of your ability. It may not be possible to get everything your client wants, and that is not what we are looking for. Your task is to acquire the best deal possible for your client, whilst also appealing to the desires of the other party, and believe it or not what some clients want is impossible.

Each round will involve 40 minutes of deliberation between the parties, and in addition, each party will be allowed a five-minute break to have a private discussion regarding the negotiation. After the 40 minutes of the round has concluded, the judges will take approximately 20 minutes to evaluate the round and give feedback to the teams. (40 minutes sounds like a long time but trust me time absolutely flies by).

Assessment Criteria

The all-important assessment criteria are as follows: Ability to work as a team: Are you talking over the top of each other or is there a consistent flow and balance of who is speaking?

Understanding of what your client wants: Have you demonstrated throughout the negotiation that you know your client’s priorities?

Understanding of what your opposition wants: Have you indicated that your team has considered the interests of the other party, or are you too focused on your client to reach an agreement?

Negotiation Skills: Have you used negotiation tactics and skills and if so, was this done effectively?

Etiquette and Presentation : Did you act in a professional and courteous manner?

Techniques

Extreme Opening Offer A cheeky little tactic this one, the extreme opening offer involves proposing an outcome that far exceeds what your client desires. An example would be offering to sell a property to the other party for $800,000 when in reality, your client would be happy to sell the property for $500,000. This technique may prove fruitful as during the negotiation, the opposing party will likely propose offers far below the extreme offer, making it seem as if your party is making considerable concessions and as such, increases your bargaining power, when in reality, you are making concessions within your client’s wishes. Whilst this may be an effective technique especially against less experienced teams, it may backfire if the offer is too extreme, as the opposing party may lose trust in your party, creating a tense atmosphere. Use this technique wisely.

When dealing with an extreme opening offer, teams should take a moment to consider the valuations provided of the properties in question and if these are not provided, estimate the value of the property. The other party may allude to the fact they have used this tactic with their subsequent offers being considerably less than their opening, so keep this in mind!

The Nibble This technique can be used when the parties have reached an agreement in theory. Once the parties return to formalise the agreement, one team may claim that they were not authorized to make that particular agreement and would need to implement some “minor” changes. The opposing party may be caught off guard after believing they had reached a deal and thus may hastily agree to ensure an agreement is made.

Techniques Cont.

The Nibble cont.

When faced with this tactic by an opposing party, a team should counter with their own set of “minor” changes to balance it out, which may result in the opposing party abandoning the technique and accepting the initial agreement.

Silence A powerful tool in everyday conversation, let alone negotiations, is silence. This can be implored after your team makes an offer or point, emphasizing its grandeur, or in turn after the opposition has spoken.

Responding to your opponent with silence can be beneficial as people tend to feel awkward or fear silence and will be inclined to break the silence. This response induced by nerves may result in the opposing party divulging secret facts or a good offer as they may not be thinking clearly.

To combat silence, a team should carefully consider their response, to ensure that they do not unintentionally disclose important information.

A team must be patient and focus on their thoughts, not the silence before them, and can reply with an offer or point followed by their OWN use of silence, to reverse the pressure on the opposing party.

Reasonable Offer + Empathy A two-part punch! Teams open with a reasonable offer, asking for slightly more than their instructed minimum offer. If the offer is truly reasonable the other party will be inclined to accept it but will also likely ask for further concessions. In response to this, teams should politely decline stating that they cannot make any concessions and in response to any concessions made by the opposing party should genuinely thank them in a kind tone and maintain direct eye contact, to convey sincerity.

This may seem like a preferable path for the negotiation to take as it lacks any real confrontation, however, it is important for victims of this ploy to remain focused on their client’s best interests, as this is of paramount importance. Acknowledge the kindness of the other party but do not waiver from your stance and client’s instructions.

Preparation A failure to prepare is to prepare to fail. This cliché sound of this saying is palpable but only because it is true. Teams must ensure they prepare for their negotiation, not only so each team member’s approach is synonymous and the presentation flows well, but also to help you remain confident. There will always be room to improvise and a fiveminute break for each team to regroup or alter a plan, but once you are in that negotiating room, there’s no time left to devise a plan. Teams may employ a positional based or interest-based approach.

Positional Approach This approach may seem obvious and is most common in negotiations.

The positional approach involves identifying what your client’s minimum gain from the opposition is or the maximum amount that they are willing to give, depending on whether your client is being sued, or suing, or you may need to identify both if your client is involved in a division of assets.

It will also allow you to decide what constitutes an extreme opening offer in your scenario as well as potential nibbles that may be attempted by your team and the opposition.

Positional approaches clearly identify the boundaries of the negotiation and implore users to act reasonably to achieve an agreement that is slightly better than or equal to their client’s demands.

Interest Based Approach The interest-based approach requires teams to consider what the other party is trying to achieve from the negotiations in light of the common facts. This is arguably a more responsive approach, helping your team identify possible areas of concession from the opposing party, and is ideally used when both parties are willing to collaborate.

Parties must identify their desired outcome, and begin, if possible, by asking for things that are non-monetary in nature and that are most likely to be agreed to, such as visitation rights, removal of a defamatory statement or article, etc.

Preparation Cont.

Interest Based Approach cont.

By asking for less contentious outcomes early, parties are likely to create a cooperative and friendly environment, which may incline opposing parties to act in good faith and continue to agree. Then, acknowledge what concessions you can make, but do not give these away too early. Try to make a less contentious concession early to reciprocate your opposition’s concession or to try and establish a collaborative environment.

This approach aims to create an ideal situation for both parties post-negotiation as opposed to focusing too heavily on money.

Which approach to use is up to you!! Experiment and see what matches your personality types, strengths and weaknesses. Find an approach that will accommodate the tactics you want to use. Are you confident enough to sit through silence? Can you work down from an extreme opening offer in a structured and worthwhile manner? Are you a bit of a drama queen that can pull off an Uproar? Just like a new pair of shoes, see what fits best!

BATNA?!

This acronym may look weird and unfamiliar which usually makes things scary but read on through and you will be a BATNA expert! And not scared.

BATNA stands for Best Alternative To a Negotiated Agreement.

A BATNA is your client’s strongest course of action other than a negotiated agreement, which may include taking the matter to court, contacting the Ombudsman, leaving for another workplace, etc. By identifying this, your team can use it as leverage in a negotiation, i.e., let’s reach an agreement or we will have no choice but to take our business elsewhere, take you to court, etc.

Setting your BATNA and hypothesising what the other party’s BATNA may be, will alert you to what the minimum and maximum limits of your negotiation will be. If you know that your client will only be liable for $1 million in damages if the matter goes to court, you should not make an agreement requiring your client to pay $2 million in damages.

Your BATNA and your opposition’s BATNA are your friends and certainly not to be feared. They illustrate the boundaries of a potential agreement. It should also be noted that BATNA’s are the best, in that you should NEVER settle for anything less than your BATNA. EVER!

What to do on Your Day

Cram, procrastinate, worry about what to wear, stress in silence. These are all examples of WHAT NOT TO DO. On the day of your Heat or Finals your job is to stay calm. Read over your plan that you definitely made, put on your dapper professional attire channelling your inner Harvey Spectre and eat your favourite food. You should be super proud that you had the courage to give this negotiation thing a go!

You will have received an email with the location of your negotiation and if you cannot find it just send one of the friendly competition officers an email. Make sure to rock up early to your negotiation so you are not stressed and rushing around, bring a notepad and pens which you can use to communicate to your teammate with and a bottle of water, and come in with a co-operative attitude.

In the real world many lawyers get work referred to them based off of good relationships. If a lawyer is too aggressive or difficult to work with, they will not be negotiating for long!

My Experience

The reason I am able to give you such impressive and helpful insights is that I, the author, have competed in the negotiation competition! I may not have a shiny Grand Finalist trophy but I do have some awesome memories which hopefully help calm any final nerves and give you that final push needed to give this go.

The Negotiation competition is the first real taste of advocacy work that I undertook as a university student and it was as amazing as I had hoped. As law students, most of us are here for that very reason, to help others, and this competition lets you do that arguably the best. In the negotiation you are not as heavily burdened by legislation and common law, it is up to you to best help your client. The competition was exhilarating and a great insight to our future work as lawyers. I will never forget how pumped my partner and I were exiting that negotiation and our hour long debrief afterwards.

Whilst we did not win the competition, our skills and friendship grew stronger.

The negotiation was seriously an awesome experience that I could not recommend enough. With not much time needing to be devoted to preparation, what have you guys really got to lose by giving this a shot. You get out what you put in throughout life, and this is a competition not to be missed.

The Deakin Law Students' Society thanks Herbert Smith Freehils for their sponsorship and support of the Senior Negotiation

If there are any questions in regards to a Deakin law Student Society Competition please reach out to us: director-competitions@deakinlss.org

GOOD LUCK!!!